Before I get to the substance of this post, I want to share a very important lesson I’ve learned recently.  Our basic liberties, in fact the most vital liberty of all, Freedom of Speech is under a vicious assault in this country.  Your freedom to speak is no longer free, particularly when you are fighting for consumers and fighting the powerful banking industries that own this country.  As an attorney, I face even greater challenges and liabilities when I fight this fight.  The morality, the higher calling and the larger battle to protect crucial Constitutional principles do not, unfortunately, provide protection from the assaults those of us who are fighting the good fight for consumers face on a daily basis.  The powerful interests that are aligned against the common man have infiltrated our court system and there is an active and aggressive campaign to silence and intimidate those who would dare to stand up for consumers and carry the mantle of the fight for basic rights.  This fight is risky, but I believe attorneys must continue to fight…at great personal cost and greater professional risk, because we took an oath to fight for those larger principles, regardless of the personal cost.

That being said, I want to respond to a recent newspaper article where the Chief Justice of the Florida Supreme Court commented on aspects of the “Robo Signer” Controversy.  In October 2010, the Wall Street Journal credited me with first using the phrase “Robo Signing” to describe the improper conduct that was occurring in foreclosure cases all across this country, so I offer my comments with a fair amount of credibility.  (Read the  Wall Street Journal Article on Robo Signer Controversy Here) Ever since the article appeared, more and even greater abuses have been exposed and all evidence suggests that the allegations of misdeeds and improprieties will only continue.

It is with this in mind that I must respectfully disagree with the Chief Justice of the Florida Supreme Court who is quoted as follows:

“The system has essentially been overwhelmed. The lawyers who are handling foreclosures for the lenders have been overwhelmed. Sometimes that’s because of these paperwork problems. Some people were taking some short cuts and they found out that the short cut was a long cut,” Canady said.

Read the Full Florida News Article Here

It is with profound respect and a sense of duty that I share my disagreement with the quote in the article and the general assessment of what continues to occur in courtrooms all across this state.  I believe it is an understatement to characterize what has happened to our courts as merely, “paperwork problems” or “short cuts”…..this is all far more sinister than that.  I believe our court system has been exploited by a calculated scheme to deprive all citizens of the Due Process protections provided for in both the United States Constitution and the Florida Constitution.  I say that all citizens have been deprived of important protections because when weaknesses in our courts system have been exploited in such a widespread and systematic fashion, the victims are not just those who are directly involved in that case, but every single citizen subject to the jurisdiction of the courts.  Put simply, if our courts have been exploited in this arena, what’s to stop such systematic exploitation from occurring throughout all cases heard by our courts?

The abuses that the banks and institutions are perpetrating in these cases are not merely errors, mistakes or shortcuts, they represent fundamental violations of the due process rights of every Floridian and by extension, every American.  Our system of justice, and in fact our entire system of government, was predicated on rules of fairness, honesty and integrity.  I say, “was” because the financial crisis of 2008 and the continuing downward skid through this crisis shows just how broken our entire system of government, including our system of justice has become.  In the not so distant past, ours was a country of rules  and laws.  In the context of Fraudclosuregate however our rules and laws–developed over centuries–and the Rule of Law in general have been suspended.

The most direct example of the Rule of Law ignored can be found in the systemic violation of the Florida Supreme Court’s own “Verified Complaint Rule”.  The Florida Supreme Court passed a Rule which mandated that all Residential Foreclosure Complaints be verified beginning on February 11, 2010.  This new rule was widely ignored and in some cases is still ignored today.  When sophisticated law firms that are staffed with hundreds of lawyers and which generate millions of dollars in revenue are permitted to blatantly and systematically ignore basic rules, this is not merely evidence of overwhelmed system or shortcuts…it is evidence of a calculated scheme to deprive citizens of protections the rule is intended to provide.

Finally, I find it terribly important to note that we have no idea at all exactly what the “Robo Signer” controversy really is. We cannot even speculate why these lenders suspended their procedures.  The lenders provided written responses responding to the allegations of the New Jersey Supreme Court, but if you read the explanations carefully, they offer no details and only raise more questions.  Where were the affidavits constructed? Where were the notary publics? Who signed the affidavits?  Did the affiant have the entire affidavit in front of him when they were signed?  A careful examination of all these affidavits raises even more questions in light of all the revelations, but we still have no details.  All we know is major lenders suspended foreclosures in several states BUT WE HAVE ABSOLUTELY NO IDEA JUST WHAT LED TO THESE SUSPENSIONS.  Foreclosures have resumed and the conduct that led to the suspensions has gone totally unexamined. Bizarre and unprecedented tactics have been implemented to allow wrongdoers to “withdraw” evidence that is submitted in files.  Judges across the state are “ratifying” judgments that are based on admittedly false evidence….as if they can just ignore the improper evidence that now pollutes the file.

I hope that we will prevail in the larger battle to make right the chaos that is Fraudclosuregate.  I hope that civic-minded elected and appointed officials begin to recognize the equities of fighting for the good of the common man and begin to reject the tyranny of the machine that is arrayed against us.  I hope that all of our judges will recognize that the larger battle is not just about foreclosures, it’s about protecting the basic judicial principles that this nation was founded upon.

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